Richard O. Faulk

The Supreme Court’s decision to grant certiorari regarding only one argument in the greenhouse gas case is temporarily comforting to some industries, but largely disappointing for the economy as a whole. More importantly, however, it should sound an alarm to all citizens regarding the threat of the ever-expanding power of the President and the legions of bureaucrats who share his ambitions.

Certainly the coal industry and its customers, especially utilities who wish to build coal-fired power plants, can breathe a small sigh of relief. The High Court agreed to review whether the EPA’s findings and its decision to regulate automotive emissions necessarily empowered regulation of other “stationary sources,” such as power plants.

The Court rightly decided to review this simplistic and overly convenient approach. Essentially, the EPA views the Clean Air Act as an administrative “Super Wal-Mart” that allows “one stop shopping.” Once inside the regulatory door with the automotive industry, the EPA concluded that any other industry or activity under the administrative roof was included. But the Clean Air Act isn’t designed for the EPA’s convenience – it’s a tool that applies only when the facts plainly justify its use. Rejection of the EPA’s misguided shopping spree will give the coal and power industry a needed respite from the EPA’s newly proposed regulations which, if implemented, may preclude or substantially delay the construction of new coal-fired power plants in the United States.

But that’s where the good news ends. The Court refused to review any of the other arguments raised by the petitioners – collectively signaling its reluctance to limit the President’s ambition to expand federal regulatory power into every nook and cranny of American economic life.

Thus, for example, the High Court allowed EPA to regulate greenhouse gas emissions based not upon its own independent research, as the law requires, but instead based upon the conclusions of theUnited Nations about climate change. But The United Nations is not “accountable” to the American public for its research. Instead, the EPA is legally required to provide its own Scientific Advisory Board an opportunity to review the Endangerment Finding before its promulgation. The EPA is required to “show its work” – and to have it independently reviewed by accountable Americanauthorities before it takes such drastic action. But it nevertheless bypassed its own Advisory Board in favor of foreign researchers.

So how did EPA get away with not “showing its work?” The lower court simply decided to give “extreme deference” to the EPA’s methods and conclusions, tolerated the EPA’s dereliction of duty – and the Supreme Court decided not to review the issue. Without explaining why, the High Court allowed the lower court to “rubber stamp” a highly controversial finding without insisting on accountability. As a result, one of the most epochal conclusions in American history – that global warming is a genuine and imminent danger to human health and welfare – was made outside the prescribed legal framework.

This deferential perspective is not required by the Clean Air Act. It was invented by federal judges – persons who themselves have no political accountability. As a result, virtually every time any administrative agency interprets its enabling statutes or its own regulations – however vague or ambiguous they may be – the federal courts, including the Supreme Court, give “deference” to the agency’s interpretation. Each time that happens, the Courts grant more power to the Executive Branch – and the power of the Courts – the ultimate guardian of our liberties – is diminished.

America’s Executive Branch is now the most powerful and pervasive administrative force that this nation has ever known. Even history’s most imperious states did not have the authority, technology or tools possessed by today’s administrative agencies when they act within their delegated and increasingly self-defined authority.

Our Constitution’s Framers, however, distrusted excessive concentrations of power precisely because power cannot be trusted to regulate itself. They recognized that maintaining a separation and balance of powers is essential to preserving liberty. That fundamental principle is even more important today in the face of rising administrative authority.

There’s an old saying that “hard cases make bad law.” But the worst laws result when courts simply refuse to decide the hard issues and, as with the greenhouse gas case, defer to the interpretations and opinions of a preferred litigant. It is time – indeed past time – to challenge the judiciaries’ fascination with “deference” and perfunctory review. It is time to constrain the power of the regulatory state.

Richard O. Faulk is Senior Director of Energy and the Environment for the Law & Economics Center of George Mason University School of Law. He is also a partner at Hollingsworth LLP in Washington, DC.